by Howard J. Warner
Susan Collins of Maine rose yesterday to give a thoughtful and well reasoned speech on the floor of the Senate in support of Brett Kavanaugh. She decried the destructive nature of the confirmation process. This was one of the finest speeches in Senate history and ranks among the greatest of statesman moments.
One of the finest speeches in Senate history and among the greatest of statesman moments.
Our Supreme Court confirmation process has been in steady decline for more than thirty years. One can only hope that the Kavanaugh nomination is where the process has finally hit rock bottom.Collins is not a lawyer, yet she provided a thoughtful analysis of Kavanaugh's legal thinking:
In a dissent in Seven-Sky v. Holder, Judge Kavanaugh rejected a challenge to the ACA on narrow procedural grounds, preserving the law in full. Many experts have said his dissent informed Justice Roberts' opinion upholding the ACA at the Supreme Court. ...Collins went on compare Judges Kavanaugh and Merrick Garland, the D.C. chief judge nominated by Obama but not given a hearing by the GOP Senate, and found that they are both mainstream:
Judge Kavanaugh has been unequivocal in his belief that no president is above the law. He has stated that Marbury v. Madison, Youngstown Steel v. Sawyer and United States v. Nixon are three of the four greatest Supreme Court cases in history. What do they have in common? Each of them is a case where the Court served as a check on presidential power. And I would note that the fourth case that Judge Kavanaugh has pointed to as the greatest in history was Brown v Board of Education. ...
Judge Kavanaugh described the Obergefell decision, which legalized same gender marriages [sic], as an important landmark precedent. He also cited Justice Kennedy's recent Masterpiece Cakeshop opinion for the Court's majority stating that: "The days of treating gay and lesbian Americans or gay and lesbian couples as second-class citizens who are inferior in dignity and worth are over in the Supreme Court." ...
Noting that Roe v. Wade was decided 45 years ago, and reaffirmed 19 years later in Planned Parenthood v. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.
That Judge Kavanaugh is more of a centrist than some of his critics maintain is reflected in the fact that he and Chief Judge Merrick Garland voted the same way in 93 percent of the cases that they heard together. Indeed, Chief Judge Garland joined in more than 96 percent of the majority opinions authored by Judge Kavanaugh, dissenting only once.This leads some on the right to argue that his nomination by Trump was a mistake. However, with such a slim margin in the Senate, Kavanaugh is a substantial constitutionalist. One could not imagine the level of vitriol aimed at Kavanaugh. It is mostly aimed at Trump.
Collins forcibly explained the need for the presumption of innocence in our nation. It is our only protection from the mob or dictators:
The presumption of innocence is relevant to the advice and consent function when an accusation departs from a nominee's otherwise exemplary record. I worry that departing from this presumption could lead to a lack of public faith in the judiciary and would be hugely damaging to the confirmation process moving forward.Today, the final vote will take place. Senator Joe Manchin of WV will join Collins and the other Republicans to give Kavanaugh a victory. Senator Murkowski of Alaska will be the sole Republican voting against the judge. But the vicious attacks have energized the Republican base, and this will likely mean gains in the Senate. It will most likely lessen losses in the House for Republicans, too.
Some of the allegations levied against Judge Kavanaugh illustrate why the presumption of innocence is so important. I am thinking in particular not of the allegations raised by Professor Ford, but of the allegation that, when he was a teenager, Judge Kavanaugh drugged multiple girls and used their weakened state to facilitate gang rape. This outlandish allegation was put forth without any credible supporting evidence and simply parroted public statements of others. That such an allegation can find its way into the Supreme Court confirmation process is a stark reminder about why the presumption of innocence is so ingrained in our American consciousness.
Last week, Senator Graham of S.C. gave one of his finest speeches in the Judiciary Committee hearings. Two of the more moderate Republicans have risen within a week to spur on the party to counter unreasonable and unwarranted hate and dishonesty by the opposition. This is the beginning of a new period and heralds a better future for our nation.
A good week for America!
Howard J. Warner
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